Non-Union and Union Employers – The National Labor Relations Board’s Impact on Your Business

For many years, in an effort to comply with the National Labor Relations Act (NLRA) and avoid unfair labor practice charges (ULPs), non-union and union employers have trained their frontline supervisors that:

  • Hourly employees may discuss (or complain about) their wages, wage increases and benefits (or lack of benefits) with other employees.
  • Management cannot permit anti-union talk while prohibiting pro-union talk.
  • Management may never prevent talk about unions (for or against) while employees are on non-working time.
  • Management must be consistent in treating union solicitation the same as any other kind of solicitation by employees who are not acting on behalf of the company. This includes, for example, policies regarding sports pools, collections for gifts or flowers, and charitable collections.

Now, employers likely will need to conduct more training because, as expected with a new president who promised to become the “strongest labor President you have ever had” and a change in the majority status of the National Labor Relations Board (NLRB), the NLRB has demonstrated how it is targeting to upend the previous business-friendly administration’s laws, regulations and decisions. The current administration already created the White House Task Force on Worker Organizing and Empowerment to consider “issues that may be hindering full enforcement of workplace protections.”

Despite these changes, the January 2022 Bureau of Labor Statistics report showed there were 241,000 fewer union members in 2021 than there were in the previous year. Only one in 16 workers belongs to a union. Based on these statistics, non-union and union employers might wonder if they should be concerned about the new NLRB. A justifiable concern exists because unions are filing more ULPs with the NLRB against non-union and union employers and the NLRB is seeking to promote union organizing.

Since being sworn in on July 22, 2021, Jennifer Abruzzo, general counsel (GC) for the NLRB, has lived up to President Biden’s commitment to “a cabinet-level working group that will solely focus on promoting union organizing and collective bargaining.” On August 12, 2021, the GC issued a memorandum instructing regional offices to send cases relating to certain issues to her office for consideration.

The memorandum highlighted more than 40 decisions from the previous NLRB that are up for reconsideration, based on the GC’s view that they overruled legal precedent and are not consistent with the basic purpose of the NLRA to promote unionization. The memorandum goes beyond an intent to overturn the previous NLRB’s precedent – it also “identifies other initiatives and areas that, while not necessarily the subject of a more recent Board decision, are nevertheless ones I [GC] would like to carefully examine.” Those initiatives include:

  • Whether non-union employees have a right to union representation/witnesses at investigatory interviews;
  • Whether an employer must provide the union with its interview questions in advance of the interview;
    Information requests when an employer intends to relocate its operations; and
  • The right of an employer to withdraw recognition after the third year of a contract of longer duration.
  • On September 8, 2021, the GC issued another memorandum advising the regional offices to seek a variety of remedies to address alleged violations of the NLRA. The following list is not exhaustive:
  • In cases involving unlawful terminations, the memorandum advises regions to seek compensation for consequential damages, front pay and liquidated back pay.
  • If the aggrieved employee is an undocumented worker, the memorandum recommends that regions seek compensation for work performed under unlawfully imposed terms, employer sponsorship of work authorizations and other remedies designed to prevent unjust enrichment.
  • In unlawful failure to bargain cases, the GC advises regions to seek remedies that include requiring the employer to submit to a bargaining schedule, submit status and progress reports to the NLRB, reimburse the other party’s collective-bargaining expenses, reinstate unlawfully withdrawn proposals, and submit to other broad cease-and-desist orders.
  • A unique suggestion in the GC’s memorandum is that regions should consider the hiring of a qualified applicant of the union’s choice in the event a discharged employee is unable to return to work.
  • If the matter involves unlawful conduct during a union organizing drive, the memorandum suggests that regions seek a wide range of remedies that include:

(a) granting unions contact information for and access to employees, including bulletin boards and equal time to address employees during an employer’s “captive audience” meeting about union representation;

(b) requiring employers to reimburse unions for costs incurred as part of their organizing effort, including costs associated with any re-run election;

(c) requiring an employer to read (with the union present) the “Notice to Employees and Explanation of Rights” (Notice) to employees, supervisors and managers, or possibly a video recording of the reading of the Notice, with the recording being distributed to employees by electronic means or by mail;

(d) requiring an employer to publish the Notice in newspapers and other news media (including social media) at the employer’s expense; and

(e) requiring employers to provide management and supervisor training on the NLRA.

On November 29, 2021, a Memorandum of Agreement was created between the NLRB and the Department of Labor (DOL), Office of Labor-Management Standards (OLMS) to share investigatory information. The OLMS is an agency of the DOL that “promotes standards for democracy and fiscal responsibility in labor organizations.” The OLMS appears to be focusing attention on its Form LM-10 that is completed and submitted electronically via the OLMS’s website. The LM-10 is used to report any payments to any union, union official and employees for the purpose of causing them to persuade other employees with respect to their bargaining rights; payments for the purpose of interfering with employees in the exercise of their bargaining rights; and payments to labor consultants and attorneys for the purpose of persuading employees with respect to their bargaining rights. Recently, the OLMS targeted companies that have employees who filed a decertification petition – an attempt to remove a union where employees believe support for a union has diminished. Presumably, the OLMS is investigating whether any employee filing a decertification petition must have been paid by the company to do so. As a result of investigations, companies have had to provide proof that the employee and also the attorney representing the company during the decertification process were not paid to be “persuaders” and thereby subject to the LM-10 reporting requirement.

In December 2021, the NLRB announced that it will issue proposed rulemaking on the standard for determining whether two employers are “joint employers” under the NLRA. The NLRB is expected to revert to its 2015 standard that two companies were deemed to be joint employers if they possess an ability to indirectly control employment terms and conditions of another employer’s employee, even if the company never actually exercised that ability.

President Biden signed an executive order on February 4, 2022 that mandates the use of project labor agreements (PLAs) on federal construction projects valued at or above $35 million. PLAs are pre-hire collective bargaining agreements between contractors and labor unions that set the terms and conditions of employment for a specific construction project, such as wages, hours, working conditions, worker qualifications and dispute resolution processes. Thus, under a PLA, the government or a general contractor negotiates with one or more unions to set the terms of the project before the project starts.

While the order does not require construction companies to unionize, it does require federal construction contractors to adhere to the terms of PLAs. Under the order, PLAs must include guarantees against strikes and lockouts, prompt and mutually binding procedures for resolving labor disputes, and mechanisms for labor-management cooperation on matters of mutual interest and concern, including productivity, quality of work, safety and health.

As the federal government pushes forward with the Biden administration’s initiatives, non-union and union employers should monitor the developments from the NLRB and associated federal agencies and work with counsel to review and update policies and procedures to comply with the new rules and regulations.

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